Ending a Marriage Flashcards
What is an annulment
voids a marriage and declares it as having never been valid
What is a void marriage
Treats as marriage as never happened, does not need to be judicially dissovled; not legally recognized for any purpose
what voids a marriage
prior existing marriage, incest, mental incapacity
what happens with a prior existing marriage
the later marriage is void; some states allow the marriage to become valid if one party had a good faith belief that the marriage was valid and the impediment is removed
rebuttable presumption of validity of the latest marriage
What is a voidable marriage
valid until a judicial decree dissolves the marriage
what are grounds for a voidable marriage
age, impotence, intoxication, fraud, duress, or lack of intent
what are defenses to a void marriage
only defense is to deny the existence of the impediment that makes the marriage void; removing the impediment makes the marriage voidable
what are defenses to a voidable marriage
equitable defenses of unclean hands, laches, and estoppel
what is the putative marriage/spouse doctrine
a party who participated in a ceremonial marriage and beleives in good faith that the marriage is valid may use a state’s divorce provisions even if the marriage is later found to be void
what are the grounds for divorce
no fault
fault (adultery, cruelty, desertion, habitual drunkenness, bigamy, imprionment, instituitonalization for insanity)
what is a no fault divorce
marriage is irretrievably broken and there is no prospect of reconciliation. irreconcilable differences must exist for a specific period of time prior to the filing of the divorce action
what are fault divorces
adultery
cruelty
desertion
habitual drunkenness
bigamy
imprisonment
institutionalization for insanity
adultery
must be shown that the spouse had the opportunity and inclination to commit adultery; usually proven by circumstantial evidence
cruelty
plaintiffy must demonstrate a course of conduct by the other party that is harmful to the plaintiff’s physical or mental health that makes continued cohabitation between the parties unsafe or improper
desertion
results when one spouse voluntarily leaves the marital home with the intent to remain apart on a permanent basis; does not apply if the parties separate by mutual consent
habitual drunkenness
frequent intoxication that impairs the marital relationship
bigamy
when one party knowingly entered into a prior legal and existing marriage before entering into the current marriage
imprisonment
of one spouse for a specified period of time
institutionalization for insanity
with no reasonable prospect of discharge or rehabilitation
defenses to fault based divorce
recrimination, unclean hands, connivance, condonation, collusion, provocation, insanity, consent, justification, religion
must be affirmatively pleaded
recrimination and unclean hands
both spouses have committed a marital wrongdoing of like conduct (mostly seen in desertion, adultery, cruelty)
connivance
consent to or participation in the marital wrong (usually adultery; ex. allowing or benefiting from spouses prostitution)
condonation
forgiveness of spouse
must be knowledge and forgiveness of misconduct and party assumes marital relations with guilty party
collusion
both spouses conspired to fabricate grounds for divorce
provocation
misconduct is provoked by moving party
insanity
valid defense when one spouse doesn’t know difference between right and wrong or lacks the ability to understand that an act is wrongful
consent
defense to desertion or adultery
justification
may be established if one party left the home because of the other’s misconduct (defense to desertion)
religion
fails in all jurisdictions
ways that court distributes property at the end of marriage
community property and equitable distribution
community property
most states require equal division of marital property
equitable distribution
fair distribution of marital property, not necessarily an equal division
what is marital property
most states say that it is all property acquired during marriage
what is hotchpot approach
states that all property owned by either spouse
what is nonmarital property
property acquired before the marriage
property excluded by the parties’ valid agreement
property acquired by gift or inheritance (except for gifts between spouses)
any award or settlement paryment received for a cause of action or claim that accrued before the marriage, regardless of when the payment was received
factors for distribution of marital property
length of marriage
prior marriages
age
health
earnings
earning potential
needs
professional licenses/degrees
not a property interest, but can affect alimony
retirement or pension benefits
marital property if acquired during marriage
personal injury/workers’ comp
some states - if cause of action accrued during marriage, the proceeds or awards are marital property
other states - allocate the proceeds of award between marital property and separate property
goodwill
reputation and clientele of professional practice is considered marital property
accumulated sick and vacation days
states split on classification
expectancy interest in property
not distributable
social security benefits
not subject to equitable distribution
post separation property
can be marital property
unexercised stock options
marital property if acquired during marriage
modification of property division
not permitted because based on parties’ assets at the time of divorce
